BRAHM RAJ Vs. VIDYA WATI

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree of the first Appellate Court affirming on appeal those of the trial judge whereby the suit of the plaintiff / respondents for mandatory injunction was decreed. The facts :- Madan Lal plaintiff filed the suit for a mandatory injunction against the defendant / appellant for handing over possession of the suit property to him. It was alleged that on Sept. 1, 1967 under an oral agreement, the defendant took the suit property on licence and remained in possession of the same for a few months; on Sept. 23, 1969 through a registered notice, the plaintiff revoked the licence; the defendant was still in possession of the property to which he had no right. The suit was filed for a mandatory injunction on Oct. 4, 1969.

(2.) The defendant contested the suit inter alia pleading that the suit in the present form did not lie; that there was relationship of landlord and tenant between the parties; that the civil court had no jurisdiction, that the defendant took the disputed property on an annual rent of Rs. 1200.00 as partner of M/s Brahm Raj Medical Hall, Jind and had kept accounts regularly and paid rent upto 31/08/1969; that the defendant was a partner of firm M/s. Brahm Raj Medical Hall, Jind which was registered and that the firm was not made a party in the suit and the suit was bad for non-joinder of necessary parties; that the plaintiff ought to have paid the court-fee on the market value of the suit property for suit for possession and not for injunction and that the suit was bad on account of delay and acquiescence.

(3.) The trial judge framed the following issues from the pleadings of the parties : 1. Whether the defendant came into possession of the southern portion of the shop shown in red colour in the plaint filed by the plaintiff as a licencee vide an oral agreement as prayed in the plaint? If so then what was the date of the execution of the oral agreement and what were its terms and to what effect? 2. Whether the defendant is in possession of the shop in dispute as a tenant of the plaintiff, as mentioned in the written statement? If so then what were its term and to what effect? 3. Whether this court has jurisdiction to try this suit in the present form? 4. Whether this suit is bad for non-joinder of necessary parties, as mentioned in the written statement? If so then to what effect? 5. Whether the plaintiff is estopped from filing this suit on the ground as mentioned in the written statement? 6. Whether this suit has been properly valued for the purposes of court-fee and jurisdiction if so, then to what effect? 7. Whether plaintiff is not the owner of the property and Vidya Wati is the owner of the property in suit? OPD (Onus objected to) 8. Whether this suit is maintainable in the present form? 9. Whether the plaintiff is entitled for a decree for mandatory injunction as prayed in the plaint? 10. Relief. The trial judge decided issues Nos. 1, 2, 3, 6, 8 and 9 in favour of the plaintiff; issues Nos. 4, 5, 7 were decided against the defendant and in result the plaintiffs suit was decreed. The defendant challenged the judgment and decree of the trial judge in appeal before the Additional District Judge. The first Appellate Court vide its order dated 1/01/1975 called for additional evidence whereafter two witnesses, namely, CW 1 Telu Ram and CW 2 Vas Dev were examined by the trial Court on 5-2-1975. Document marked 'C' was also brought on the record. During the pendency of the appeal, the defendant made an application under O.6, R.17, Civil P.C. seeking amendment of the written statement to plead that he had fixed permanent structures, namely, iron shutters, furniture, telephone and electric meter and therefore, the licence, if any, had become irrevocable. This application was allowed by the first Appellate Court vide its order dated Nov. 3, 1977. The plaintiff unsuccessfully challenged the order in this Court in Civil Revision No. 1836 of 1977 decided on 27/04/1978. During the pendency of the first appeal, the plaintiff died and vide order dated Jan. 3, 1976, the respondents were brought on record as legal representatives of the deceased. The first Appellate Court negatived the plea of the defendant that he was in occupation of the disputed property as tenant. It, however, arrived at the following findings :- "Learned counsel for the appellant made much stress on the fact that the possession of the premises is exclusive. No doubt it is so. (Para 25 of the First Appellate Court judgment). The writing 'Mark C' is written on the back of application 'Mark A'. This application purports to have been made by Smt. Vidya Wati wife of Madan Lal to Municipal Committee on 27/03/1969. It is said that against shop No. 319 (which is the shop in dispute) the name of the tenant is wrongly shown and in fact it is Paras Ram with whom the shop was on rent. Then there is a some mention of shop No. 319-A with which we are not concerned but in respect of which it is said that it is lying vacant for the last 2 1/2 years. On the back of this writing Mark 'A' is writing 'Mark C'. It is in Hindi and its English translation is as under :- "Shri Laxmi Narain is present. i) "Rent of property No. 319/7 admitted. The name of tenant is changed on the condition that he files an affidavit to this effect. (It is not clear who is meant by he underlined above this parenthesis mine). ii) The rent of property No. 2 is fixed at Rs. 200.00 per annum. Writing Mark 'C' purports to have been signed by Laxmi Narain Advocate who is son of the plaintiff and who is now one of the respondents. The witnesses examined in respect of this writing are two handwriting experts K.S. Puri (DW-10) and Bishambher Nath Srivastava (P. W. 5), Taxation Inspector Kartar Singh D.W. 3 and two Municipal Commissioners Telu Ram C.W. 1 and Vasdev C.W.